Re W (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Holroyde,Lord Justice Moylan,Lord Justice Peter Jackson |
| Judgment Date | 15 August 2018 |
| Neutral Citation | [2018] EWCA Civ 1904 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2018/1218 |
| Date | 15 August 2018 |
[2018] EWCA Civ 1904
Lord Justice Moylan
Lord Justice Holroyde
and
Lord Justice Peter Jackson
Case No: B4/2018/1218
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HIS HONOUR JUDGE BROMILOW
Sitting as a Deputy High Court Judge
HIGH COURT OF JUSTICE
FAMILY DIVISION
FD17P00388
Strand, London, WC2A 2LL
Mr E Devereux QC and Mr J Green (instructed by Best Solicitors) for the Appellant
Mr H Setright QC and Mr M Gration (instructed by Dawson Cornwell Solicitors) for the Respondent
Hearing date: 30 th July 2018
Introduction
The father appeals from the order made on 30 th April 2018 by His Honour Judge Bromilow, sitting as a Deputy High Court Judge. By this order the judge set aside the previous order he had made on 30 th November 2017 under The Hague Child Abduction Convention 1980 (“the 1980 Convention”) by which he had ordered the mother to return the parties' child to Spain by 28 th December 2017. He did so because he considered that there had been a “sea-change” since he had made that order because of a significant deterioration in the mother's mental health. He made a number of directions leading to the proposed rehearing of the father's application.
I gave permission to appeal largely because this case appeared to provide the opportunity for this court to consider whether the High Court has jurisdiction to set aside a final order made under the 1980 Convention. This is an issue which has been referred to in previous Court of Appeal decisions but never determined: see, for example, Black LJ (as she then was) in In re F (Children) (Return Order: Appeal) [2017] 4 WLR 4, [26] and [27]. However, following the hearing, I have come to the conclusion that, for a number of reasons, it is neither necessary nor appropriate for this court to address this issue in this case. The reasons for this can be briefly summarised.
First, at the conclusion of the hearing Mr Devereux QC, for the father, effectively accepted that the substantive application has to be reheard given the circumstances as set out below. In the event of the appeal being allowed, he accepted that he could not stand in the way of this court giving the mother permission to appeal out of time. He also effectively, and in my view rightly, acknowledged that, given the judge's conclusions as to the impact of the new evidence about the mother's mental health on his original decision, we would be likely to allow the appeal and order a rehearing. As a result, the outcome for the parties and B will be the same, whether we dismiss or allow the appeal, namely there will be a rehearing. The appeal has, therefore, in practical terms become academic.
Secondly, the case was listed for hearing on short notice, leading to the parties not being in a position fully to argue the legal questions which the issue identified above raises. Additionally, my further researches since the hearing have led me to conclude that the proper meaning and scope of section 17 of the Senior Courts Act 1981 requires significant additional argument (as I will seek to explain below).
Thirdly, because of delays which have already occurred, this case is now urgent and any further delay, which would be required if the central issues were to be substantively addressed by this court, would, frankly, be unacceptable.
Accordingly, I propose, as a pragmatic way of dealing with the case, that the appeal is dismissed and that the directions given by the judge for the purposes of the rehearing are implemented and the matter listed as a matter of urgency.
However, despite coming to that conclusion, I propose to summarise the parties' respective submissions and make some brief observations about the legal issues raised by the single ground of appeal, which contends that the judge was wrong to decide that the High Court has jurisdiction or power to set aside a final order made under the 1980 Convention. As will be seen, my provisional view is that this submission is not well-founded.
Background
I propose only to set out only the briefest summary of the history.
The mother is British. The father is Spanish. They have one child now aged 8 (who I will call “B”). The parties met in Spain where the mother had spent a substantial part of her childhood. They were in a relationship until early 2014. Following their separation and with the assistance of lawyers the parties entered into an agreement which was approved by the Spanish court and which provided for B to live with the mother and to have regular contact with his father.
On 12 th October 2016 the mother travelled to England with B. It appears to have been accepted that this was a wrongful removal.
Proceedings
As will become clear, the proceedings in this case have not followed expeditiously from the date of the wrongful removal. During the hearing we did not explore the reasons for this but I set out the timetable to explain why the case undoubtedly now requires expeditious determination.
The father did not commence proceedings under the 1980 Convention in England until 27 th July 2017. I should make clear that neither the father's legal representatives nor the International Child Abduction and Contact Unit were responsible for any part of this delay. ICACU only received the request on 18 th July 2017 and the father's solicitors were promptly instructed on 20 th/21 st July.
The first effective hearing did not take place until 11 th September because the mother was not located and served until 8 th September. In her response to the father's application the mother relied on Article 13(b) (a grave risk that the child's return to Spain would expose him to physical or psychological harm or otherwise place him in an intolerable situation) and B's objections (that he objected to being returned to Spain). The final hearing took place on 14 th/15 th November 2017. At the hearing the judge heard oral evidence from a Consultant Psychiatrist who had filed a report on the mother. Her mental health and the effect on her of returning to Spain were the foundation of the mother's reliance on Art 13(b).
The judge gave judgment orally on 15 th November. The subsequent order, which was not made until 30 th November, required the mother to return B to Spain by 28 th December 2017 on the basis that B would remain in her care.
On 11 th December 2017 the mother applied for the order of 30 th November to be set aside and for the instruction of the psychiatrist to provide a further report. The substantive application was based on the mother's already precarious mental health having “markedly deteriorated” since the hearing (as set out in the statement filed by her solicitor). After a brief directions hearing, the mother's application came back before HHJ Bromilow on 19 th December 2017. He gave permission for the further instruction of the psychiatrist to provide a report on the current state of the mother's mental health and the likely impact on her of her returning to Spain. The mother's application for a rehearing was listed for determination on 15 th/16 th March 2018. We were told that these dates were the earliest that the judge could hear the case in London. In my view this was not sufficient to justify such a significant delay. An alternative means of conducting an earlier hearing should have been found.
As I have already explained, beyond the explanation for the delay until 15 th March, we did not explore the reasons for the case progressing so far outside the 6-week requirement. However, it is plainly unsatisfactory, to put it mildly, that a year should have elapsed since the father made his application without it having been finally determined. There is a heavy obligation on the parties and the court to make sure that proceedings under the 1980 Convention are completed expeditiously.
The Judgments
In his first judgment of 15 th November 2017 the judge found that B did not object to returning to Spain. The judge's ultimate conclusion in respect of Article 13(b) was that this was also not established. He would have been satisfied of a grave risk of harm to B but for his assessment of the adequacy of the proposed protective arrangements. He considered that they would sufficiently ameliorate the effect on the mother's mental health of a return to Spain.
In his second judgment of 22 nd March 2018 the judge sets out that, following delivery of his judgment on 15 th November, “the mother suffered a panic attack in the court building”. She was treated by paramedics. In his further report dated 19 th January 2018 the psychiatrist said that there had been a “dramatic deterioration” in the mother's mental health which he had not anticipated. It was his opinion that she “is not functioning now and is unlikely to function in Spain even with support”. The mother had been “psychologically overwhelmed by circumstances”. The psychiatrist also gave oral evidence during which he said: “There has been a very substantial quantum deterioration that has occurred since I last saw her.”
The judge decided that he had jurisdiction to set aside his previous order under r.4.1(6) of the Family Procedure Rules 2010 (“the FPR 2010”). In reaching this conclusion he followed, in particular, In re F (A Child) (Return Order: Power to Revoke) [2014] 1 WLR 4375. The judgment makes no reference to any of the other legal arguments developed before us, in particular the father's submissions on s. 17 of the Senior Courts Act 1981.
Based on the new evidence the judge concluded that there had been a significant change of circumstances. The “position with regard to (the mother's) psychiatric health has fundamentally changed”. Previously, the return of B to Spain had been predicated on his returning with and being cared for by the mother. This appeared no longer to be possible, leading...
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